Griffin and Chamier, JJ.
1. The Taxing Officer is of opinion that there was a deficiency of Rs. 63 in the court fee paid by the defendants on the memorandum of objections, presented by them to the lower appellate court. The defendants do not accept his view. The case is not covered by Section 5 of the Court Fees Act, therefore the decision of the Taxing Officer is not final, and the question must be decided by the Bench which hears the appeal.
1. The facts are as follows:
2. The suit was for the recovery of Rs. 150 principal, and Rs. 1,680 interest, total Rs. 1,830, on foot of a simple mortgage. The Subordinate Judge held that the plaintiff was entitled to Rs. 632-12-11, on account of principal and interest at the date of the suit, and he passed a decree for that amount with interest for six months at the contract rate, and thereafter till realization at the rate of six per cent, per annum. His decree, dated the 29th of April, 1911, which was prepared In the usual form, declared that Rs. 988-3-8 would be due to the plaintiff, on the 19th of October, 1911, on account of principal and interest on the mortgage in suit. We omit the rest of the decree, as it is immaterial at present. On the 2nd of June, 1911, the plaintiff appealed on a point which does not now concern us, and on the 25th of July, 1911, the defendants filed objections under order XLI, Rule 22, asking that the suit should be dismissed. They paid a court fee upon Rs. 150, the amount of the principal sum secured by the mortgage. The fee paid was certainly insufficient, but the question is on what amount it should have been paid, The Taxing Officer of this Court holds that they should have paid court fees on Rs. 988-3-8. His view is supported by the decision of Tudball and Rafiq, JJ. in Baldeo Singh v. Kalka Prasad (1913) I.L.R. 85 All 94. and we are informed, by decisions of former Taxing Judges of this Court. As at present advised we are unable to accept these decisions. According to article 1 of schedule I to the Court Fees Act, the court fee payable on objections, filed under order XLI, Rule 22, is to be calculated according to the amount or value of the subject-matter in dispute. There appears to us to be no justification for the hard and fast rule, which seems to have obtained in this Court, that a mortgagor who, in a memorandum of appeal or objections, contends that a preliminary decree for sale, passed against him, should be set aside in toto, should pay court fees on the amount declared to be due on the date fixed in the decree. An appeal or objection may be, and often is, filed before the day fixed in the decree. That was the case here. The amount payable by the defendants for redemption of the mortgage on the day when they filed their objections was less than the amount declared in the decree. A mortgagor is entitled to redeem his property before the day fixed in tie decree, and if he does so, he is not bound to pay the amount declared in the decree. He may redeem on payment of the principal and interest due on the day on which he pays the money. On the other hand, a court passing a preliminary decree for sale is not bound to allow six months for payment. It may, and often does, allow a much shorter time, and in such a case the appeal or the objections may be filed after the date fixed in the decree. In neither of the cases which we have instanced can there, in our opinion, be any justification for requiring court fees to be paid on the amount declared in the decree. The rule hitherto observed is, no doubt a convenient one for the Taxing Officer's department, but it appears to rest upon no principle, and we understand that it has been challenged on many occasions and that it does not obtain in any other High Court. The High Court of Bombay appears to disregard all interest accruing after the date of a suit on a mortgage so far as court fees are concerned. Where a mortgagor by appeal or objection challenges part only of a preliminary decree for sale, the practice is to require him to pay court fees on the amount which he says should be struck out of the decree, and in ascertaining the value of the subject matter of the appeal no attention is paid to the date fixed in the preliminary decree.
3. We think that the present state of affairs is unsatisfactory and we direct that this case be laid before the Chief Justice in order that he may consider the propriety of appointing a larger Bench to hear this appeal.
4. The case coming on before a Full Bench
5. Munshi Govind Prasad, for the appellant, submitted that it was the intention of the Legislature that in all suits for redemption or forelosure court fees should be paid on the sum secured by the mortgage deed. Therefore in this appeal the plaintiff should be allowed to pay court fees on Rs. 150, the sum secured. The defendant denied the plaintiff's right to redeem and the issue was, whether the plaintiff had a right to redeem, and is liable to pay court fees only on the sum secured by the mortgage deed. The amount which at the date of the decree the plaintiff was held to be entitled to was the sum of Rs. 632-11-11, which the Court found to be due to him upon his mortgage. The additional sum mentioned in the decree as payable by the defendant included interest for a period subsequent to the date of the decree.
6. Mr. W. Wallach (for the Government), submitted that it was true that in a suit for redemption or foreclosure court fee was payable on the principal amount secured by the mortgage deed. But that only applied to the suit which was instituted in the court of first instance. In the case of an appeal, the court fee payable was an 'ad valorem' court fee on the subject matter of the appeal, (Schedule 1, article I, of the Court Fees Act.) When one appeals; it does not matter if the lower court was right or wrong or what the issue was; he attacks the decree of the lower court sod, therefore, he must pay court fees on the amount decreed by that court; Baldeo Singh v. Kalka Prasad (1913) I.L.R.95 All 94
Banerji, Tudball and Piggott JJ:
7. This appeal arises out of a suit for foreclosure of a mortgage of the 28th of July, 1880. There were two sets of defendants, namely, the legal representative of the mortgagors and persona who had purchased a part of the mortgaged property. The purchasers are the appellants before us. In the court below they denied the mortgage on which the plaintiff's claim was based and they asserted that they had discharged an earlier mortgage and were entitled, if the plaintiff's mortgage was genuine, to hold up the payment made by them in discharge of the prior mortgage as a shield against the plaintiff's claim. The court of first instance found the plaintiffs mortgage to be genuine and Rs. 632-12-11 to be due to the piaintiff upon that mortgage at the date of the decree. It accordingly made a decree directing the plaintiff to pay to the present appellants Rs, 967, on account of the prior mortgage discharged by them, and for sale of the mortgaged property in the possession of those defendants for the realization of the said amount, as also the amount found to be due on the plaintiff's own mortgage. The plaintiff appealed to the court below from this decree and the appellants before us, who were defendants to the suit, filed cross objections, under order XLI, Rule 22, of the Civil Procedure Code, disputing the genuineness of the plaintiff's mortgage, and his right to maintain the suit. They valued their cross objections at Rs. 632-12-11, but paid court fees upon Rs. 150, the principal amount of the mortgage on which the plaintiff's suit was based. The taxing officer of this Court submitted a report to the effect that the defendants ought to have valued their objections in the court below at Rs. 988-3-8, which included interest after the date of the decree of the court of first instance, and up to the date fixed for payment. Objections having been taken to this report, the matter came before a Division Bench, and on the recommendation of that Bench the case has been laid before us for disposal of the question whether the appellants were liable to pay further court fee on their cross objections in the court below? We are clearly of opinion that the appellants were bound to pay court fees upon a larger sum than Rs. 150, the principal amount of the plaintiff's mortgage. It is true that in a suit for redemption or foreclosure the court fee is payable upon the principal amount secured by the mortgage. But that applies to the suit which is instituted in the court of first instance. In the case of an appeal the court fee payable is an ad valorem court fee on the value of the subject matter of the appeal---See schedule. I, article 1, of the Court Fees Act. We have, therefore, to consider, what was the subject matter of the cross objections in the court below and what was the value of that subject matter. There can be no doubt that the subject matter of the cross objections was the amount which the court by its decree declared that the plaintiff was entitled to recover, and not the principal amount of the mortgage. The amount which at the date of the decree the plaintiff was held to be entitled to is the sum of Rs. 632-12-11, which the court found to be due to him upon his mortgage. The additional sum mentioned in the decree as payable by the defendants includes interest for a period subsequent to the date of the decree. In valuing their cross objections the defendants were questioning the propriety of the decree in so far as it awarded to the plaintiff Rs, 632-12-11, on the date of the decree. The interest for the subsequent period was a necessary addition to the amount so awarded, in accordance with the provisions of the Code of Civil Procedure, order XXXIV. We are of opinion that in all cases in which the amount declared by the court to he due at the date of the decree can be ascertained by reference to the judgment and the decree, it is that amount at which the appeal or cross objections should be valued, and future interest should not be taken into account. The wording of the decree in this ease is no doubt defective in this respect, but its intention is clearly manifest if we refer to the judgment. The amount, therefore, at which the appellants ought to have valued their cross objections, as they did in the court below, was Rs. 632-12-11, and court fees ought to have been paid upon that amount. This would come to Rs 48, and as Rs. 11-4-0 was paid, there was a deficiency of Rs. 36-12-0. We allow the appellants two weeks to make good this deficiency.